Certainly my favorite part of the school day.  For presidents trying to make appointments to administrative posts, not so much.  While presidents have always been able to make temporary appointments while the Senate is in recess, there has been a recent gentlemen’s agreement that presidents won’t make such appointments during Senate recesses of less than three days.  This allowed the Senate to declare interim “non-working” sessions to technically avoid recess for that length of time.

Republicans are now – yet again – learning the value of gentlemen’s agreements with Democrats, President Obama making four recess appointments yesterday despite disagreement about whether or not the Senate is actually in recess.  (Much has been made of then-Senator Obama’s opposition to recess appointments, but a change of position on the limits of executive power was to be expected once he became President.  Such institutional tension is part of the Constitution.)

That these appointments substantially shift the balance of power to the executive and away from Congress is clear.  Some have been suggesting that impeachment may be the only way to deal with this, and I have to admit that, despite my reluctance to throw that term around, that was my initial reaction, as well.  However, with a little more research and reflection, I consider that route to be extremely unlikely for a number of reasons.

First, over at the Volokh Conspiracy, John Elwood argues that the appointments are actually constitutional.  His claim is that even if the Senate is not in technical recess, it is in functional recess, as it has denied itself the ability to provide the constitutionally required advice & consent. It would be unthinkable to impeach either a President or his appointees if there’s been no crime committed.

However, Elwood points out that the matter has not been adjudicated by the courts, and any regulatory actions taken by the appointees could be challenged on the basis that they didn’t have the right to hold the office.  These are high-profile offices, which will provide ample opportunities for such challenges.  Whether or not the courts will go further, and remove the appointees from their offices, or simply invalidate their acts and require repeated and persistent challenges to a regulatory authority could also determine whether or not the maneuver will succeed in spite of being found illegal.

The act establishing the consumer protection office also provides room for a statutory challenge short of a constitutional one – it explicitly requires Senate approval before the Secretary of the Treasury can transfer authority to him.  Courts traditionally prefer to make decisions on statutory bases rather than constitutional ones where possible.

So much for the legal considerations.  The politics of the situation also militates against impeachment, even assuming a timely and  clear court decision that the appointments were unconstitutional.  First, Fast and Furious provides far better grounds for impeachment against underlings like Attorney General Holder.  Starting with the abuses of power there makes much more sense.  Second, in an election year, unless there is a clear an undeniable abuse of power and criminal behavior, it will be almost impossible to persuade the public that impeachment proceedings are anything other than political.

The political and legislative overhead involved in something as momentous as impeachment is huge.  To pass articles of impeachment out of the House, knowing that they will be inevitably rejected by Senate Democrats determined to defend the administration at almost any cost is to invite a repeat of the public’s judgment on the 1998 Clinton impeachment.  Worse, repeated impeachments – even talking too freely about impeachment – risks devaluing it.

Ultimately, the political calculations by the President are probably even more important to him than the legal ones.  In the matter of the financial regulators, loud and ineffectual opposition to the appointment will simply reinforce his public position as Defender of the Little Guy Against Wall Street, in a year when his re-election strategy will be to rename Mitt Romney, “Wall Street.”

Moreover, it’s a preview of coming attractions in 2012, and Obama’s second term, should he win one – his determination to use executive powers to their fullest, in the absence of effective Congressional opposition.  The Democrats have already shown their willingness to govern without a budget for years on end, and thereby prevent Congress from exercising oversight through the power of the purse.  They’ve also shown the political skill to frame the debate in narrow enough terms to make Republican opposition to that seem “obstructionist.”  That’s really what’s at stake here.

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